KELSEN'S
THEORY
OF
THE
BASIC
NORM
Joseph Raz
O F ALL THE VARIOUS DOCTRINES of Kelsen's legal philosophy it was his theory
of the basic norm that succeeded most in attracting attention and capturing the
imagination. It acquired enthusiastic devotees as well as confirmed opponents.
Both admirers and critics owe much to the obscure way in which Kelsen explains
his theory. The obscurity was criticized and led people to suspect that the whole
theory is a myth; but it also provided admirers trading on ambiguities an easy
escape from criticism. In the following pages yet another attempt to demythologize the theory will be made. An explanation of the concept of the basic
norm as Kelsen's attempt to provide an answer to some well-known jurisprudential problems will be offered. It will be further claimed that the attempt
has failed, but that its failure is illuminating. It sheds light on the intricacies of
the problems involved and on their possible solutions.
Criticism will follow the exposition. The exposition, however, cannot be
faithful to all the relevant texts. Some ambiguities and even contradictions
cannot be eradicated by interpretation, however ingenious. Not wishing to trace
the development of the theory or to present an exhaustive discussion of all the
texts, the strategy adopted will be always to prefer the more interesting of two
conflicting interpretations, and to disregard the rest. The theory will be examined
in relation to the problems it was designed to solve. It stands or falls according
to its success in dealing with them. Kelsen regards the concept of the basic norm
as essential to the explanation of all normative systems, moral as well as legal.
Only his use of the concept in legal theory will be examined here.
I
According to Kelsen's theory it is logically necessary that in every legal
system there exist one basic norm. The basic norm can be said to exist for
Kelsen says that it is valid,1 and validity is the mode of existence of norms.2
This does not mean that all basic norms are identical in content. Indeed, no
two basic norms can have the same content. They are all called basic norms
not because of their content but because they all share the same structure, the
same unique position each in its own system, and because they all perform the
same functions.
Kelsen postulates the existence of basic norms because he regards them as
1
For example, GT 111. PTL 194. In referring
breviations are used: GT for The General Theory of
PTL for The Pure Theory of Law, 2nd ed. (Berkeley:
(Paris: 1962) (this is the French translation of PTL);
1960).
* GT 30; WJ 214, 267.
94
to Kelsen's books the following abLaw and State (New York: 1945);
1967); TP for Theorie Pure de Droit
WJ for What Is Justice? (Berkeley:
JOSEPH RAZ
95
necessary for the explanation of the unity and normativity of legal systems. A
legal system is not a haphazard collection of norms. It is a system because its
norms, as it were, belong together. They are interrelated in a special way. Kelsen
accepts two propositions which he considers too self-evident to require any
detailed justification. They can be regarded as axioms of his theory. The first
says that two laws, one of which directly or indirectly authorizes the creation
of the other, necessarily belong to the same legal system.3 For example, a criminal law enacted by parliament and a constitutional law authorizing parliament
to enact criminal laws belong to one legal system just because one of them authorizes the creation of the other. The second axiom says that all the laws of a
legal system are authorized, directly or indirectly, by one law.
It follows from the second axiom that two laws, neither of which authorizes
the creation of the other, do not belong to the same system if there is no law
authorizing the creation of both. It follows from the first axiom that if one law
authorizes the creation of another or if both are authorized by a third law then
both belong to the same legal system. Thus the two axioms provide a criterion
for the identity of legal systems and make it possible to determine with regard
to any law whether it belongs to a certain legal system or not.4
Assuming, as I think one should, that Kelsen is trying to elucidate the
common concept of the legal system and is not simply using the term to introduce
a completely different concept, the second axiom looks on the face of it like an
empirical generalization. To ascertain its truth one will have to examine all
legal systems and find whether there is in each one a law authorizing the creation of the rest. Is there, e.g., a law in Britain authorizing both parliament and
the common law? This problem is implicitly recognized by Kelsen in the following passage:
If a legal order has a written constitution which does not institute custom as a
form of law creation, and if nevertheless the legal order contains customary
law besides statutory law, then, in addition to the norms of the written constitution, there must exist unwritten norms of constitution, a customarily created
norm according to which the general norms binding the law applying organs
can be created by custom. (GT 126)
In such a legal system there will be no positive law authorizing all the rest.
Some laws will be authorized by the customary constitution, whereas others will
be authorized by the enacted constitution, and there will be no positive law
authorizing both constitutional laws. Kelsen, therefore, is aware that as an
empirical generalization, his second axiom is false. He overcomes this problem
by postulating that there is in every system one nonpositive law—a law which
authorizes all the fundamental constitutional laws and the existence of which
does not depend on the chance action of any law-creating organ, but is a logical
necessity. These laws are the basic norms of legal systems and their existence is
necessary for the truth of the second axiom; they make it a logical truth. Since
3
A law authorizes indirectly the creation of another if and only if there is a third law
authorised, directly or indirectly, by the first and authorizing the second.
* For Kelsen's criterion of identity of legal systems see GT 111, PTL 195.
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Kelsen's criterion of identity of legal systems depends on the truth of the second
axiom it also depends on the theory of the basic norm.
This is one line of argument which Kelsen implicitly uses to prove the
necessary existence of a basic norm in every legal system. Kelsen has a different
and independent argument which he employs to reach the same conclusion.
It aims to show that only the basic norm can explain the normativity of the law.
All laws are created by human actions, but human actions are facts and
they belong to the realm of the "is," whereas laws are norms and belong to the
realm of the "ought." It is another of Kelsen's unquestioned beliefs that there
is an unbridgeable gap between the "is" and the "ought"; that norms cannot
derive their existence from facts. This can be regarded as a third axiom of his
theory. He says:
Nobody can assert that from the statement that something is, follows a statement that something ought to be. (PTL 6)
Therefore, he concludes:
. . . the objective validity of a norm . . . does not follow from the factual act,
that is to say, from an is, but again5 from a norm authorizing this act, that is to
say from an ought. . . . (PTL 7-8)
The principle of dichotomy, of the unbridgeable gap between the "ought"
and the "is" entails the principle of the autonomy of norms. Norms exist only
if authorized or entailed by other norms. In the law the autonomy of the legal
norms is secured by the fact that they are all links in what may be called chains
of validity. The term is not used by Kelsen, but the idea is essential to his philosophy. He explains it as follows:
To the question why this individual norm is valid as part of a definite legal
order, the answer is: because it has been created in conformity with a criminal
statute. This statute, finally, receives its validity from the constitution, since it
has been established by the competent organ in the way the constitution prescribes. If we ask why the constitution is valid, perhaps we come upon an older
constitution. Ultimately we reach some constitution that is the first historically
and that was laid down by an individual usurper or by some kind of assembly. . . .
It is postulated that one ought to behave as the individual, or the individuals,
who laid down the constitution have ordained.
This is the basic norm of the
legal order under consideration. (GT 115)6
Thus, though every law is created by human action, it derives its validity
not from the act, but from another law authorizing its creation. Ultimately all
positive laws owe their validity to a nonpositive law, a law not created by human
action. Only a nonpositive law can be the ultimate law of a legal system; only
it does not presuppose another norm from which it derives its normativity.
This nonpositive law is the basic norm.
5
6
This principle is often repeated by Kelsen; see, e.g., "Value Judgment" in WJ 218.
Cf. PTL 199f. On Kelsen's concept of chains of validity see further Raz, The Concept
of a Legal System (Oxford: 1970), pp. 97-9. Two chains of validity linked together by a
common link are regarded as parts of one chain.
JOSEPH RAZ
97
The idea of a chain of validity is central to Kelsen's solutions of the problems of normativity and unity of the legal system. Two laws belong to one chain
of validity if one authorizes the other or if there is a third law authorizing both.
The unity of the legal system consists in the fact that all its laws belong to one
chain of validity and all the laws of a chain of validity are part of the same
system. The normativity of laws is assured by the fact that each of the laws in
a chain derives its validity from the one before it. The basic norm is essential
to the solution of both problems. It provides the nonfactual starting point
essential to the explanation of the normativity, and it guarantees that all the
laws of one system belong to the same chain of validity.
The functions assigned to the basic norm explain its content and its special
status. It must be a nonpositive norm. Basic norms are not enacted, nor are they
created in any other way. It is presupposed by legal consciousness, but Kelsen
makes it clear that it is not created by being presupposed.7 Nor is it created by the
acts of enacting other laws,8 or by the recognition by the population of a duty to
obey the law,9 as some commentators assumed. It does not make sense with
regard to any basic norm to ask when was it created, by whom or how. These
categories simply do not apply to it. Nevertheless, they can be said to exist,
for they are valid, and despite their uniqueness basic norms are part of the law,
for they perform legally relevant functions.10
For them to explain the normativity and unity of a legal system, basic
norms must authorize the creation of the laws of the various legal systems. Thus
the functions of the basic norm account for its structure. It is an authorizing
norm. It
qualifies a certain event as the initial event in the creation of the various legal
norms. It is the starting point of a norm creating process. (GT 114)
The basic norm of any positive legal order confers legal authority only upon
facts by which an order is created and applied which is on the whole effective.
(GT 120)
The basic norm is a power-conferring law. Kelsen, however, formulates it as
duty imposing: ". . . the basic norm . . . must be formulated as follows: Coercive acts ought to be performed under the conditions and in the manner which
the historically first constitution, and the norms created according to it, prescribe. (In short: One ought to behave as the constitution prescribes.)" (PTL
200-1) It is always possible to describe every law conferring legislative powers
by saying that it imposes a duty to obey the laws made by the authorized organ.11
This possibility should not obscure the nature of the law as power conferring.
The basic norm will, therefore, be regarded as conferring legislative power on
the authors of the first constitution.
* PTL 204.
TP 271.
PTL 218n.
i« "Professor Stone and the Pure Theory of Law," Stanford Law Review, 17, Vol. 2 (1965),
p. 1128.
1141.
11
See further on this subject, The Concept of a Legal System, pp. 21, 23, 166f.
8
9
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The formulation given by Kelsen in the quoted passage is not of any particular basic norm of any legal system. It merely exhibits the structure common
to all basic norms. The content of basic norms varies according to the facts of
the systems to which they belong. Kelsen explains that the content of a basic
norm "is determined by the facts through which an order is created and applied."
(GT 120)
II
Kelsen's doctrine of the unity of legal systems fails for two independent
reasons. As I have discussed them rather extensively elsewhere,12 the following
discussion will be brief. His doctrine depends on the first two axioms explained
above. It is not difficult to see that both axioms must be rejected.
The first axiom asserts that all the laws belonging to one chain of validity
are part of one and the same legal system. If this axiom were correct, certain
ways of peacefully granting independence to new states would become impossible. Suppose that country A had a colony B, and that both countries were
governed by the same legal system. Suppose further that A has granted independence to B by a law conferring exclusive and unlimited legislative powers
over B to a representative assembly elected by the inhabitants of B. Finally, let
it be assumed that this representative assembly has adopted a constitution which
is generally recognized by the inhabitants of B, and according to which elections
were held and further laws were made. The government, courts, and the population of B regard themselves as an independent state with an independent legal
system. They are recognized by all other nations including A. The courts
of A regard the constitution and laws of B as a separate legal system distinct
from their own. Despite all these facts it follows from Kelsen's first axiom that
the constitution and laws of B are part of the legal system of A. For B's constitution and consequently all the laws made on its basis were authorized by the
independence-granting law of A and consequently belong to the same chain of
validity and to the same system.
Kelsen's mistake is in disregarding the facts and considering only the content of the laws. For his theory the only important fact is that the legal system
of A has a law authorizing all the laws of B. That the courts and population of
B do not consider this law as part of their own legal system is irrelevant. But
the attitude of the population and the courts is of the utmost importance in
deciding the identity and unity of a legal system in the sense in which this concept is commonly used.13
This criticism does not directly affect Kelsen's theory of the basic norm.
However, if the doctrine of the unity of legal systems is rejected, one of the
reasons for accepting the theory of the basic norm disappears. Kelsen's theory
of the unity and identity of legal systems is vitiated by a second flaw which
directly concerns the role of the basic norm.
12
13
Ibid., pp. 100-109.
The same point is made in H. L. A. Hart, "Kelsen's Doctrine of the Unity of Law,"
published in H. E. Kiefer and M. K. Munitz (eds.). Ethics and Social Justice (New York:
1970.)
JOSEPH RAZ
99
The second axiom on which his theory of the identity and unity of the
legal system depends says that all the laws of one system belong to one chain
of validity. When discussing this axiom we saw that Kelsen admits, at least by
implication, that disregarding the basic norm, all the positive laws of a system
may belong to more than one validity chain. Some may owe their validity to a
customary constitution while others derive their validity from an enacted constitution. It is only the basic norm that unites them in such a case in one chain
of validity by authorizing both constitutions.14
A legally minded observer coming to such a country and wondering
whether the enacted and the customary constitutions belong to the same legal
system will be referred by a Kelsenite to the basic norm. It all depends, he will
be told, whether or not there is one basic norm authorizing both constitutions or
whether each constitution is authorized by a different basic norm. Being told in
answer to further questions that to know the content of the basic norm he
should find out "the facts through which an order is created and applied,"
(GT 120) for they determine it, he may very well be driven to despair. It
seems that he can only identify the legal system with the help of the basic norm
whereas the basic norm can be identified only after the identity of the legal
system has been established. Even if our diligent observer succeeds in establishing
that at least two sets of norms are effective in the society, one, a set of customary
norms, the other, of enacted norms, there will be nothing a Kelsenite can say
to help him decide whether or not they form one system or two. There is nothing
in the theory to prevent two legal systems from applying to the same territory.
Everything depends on the ability to identify the basic norm, but it cannot be
identified before the identity of the legal system is known. Therefore, the basic
norm cannot solve the problem of identity and unity of legal systems, and
Kelsen has no other solution.
Ill
If the previous criticism is correct the case for the basic norm must rest on
its function in explaining the normativity of the law. It is with this problem
that the rest of the paper will be concerned.
The role of the basic norm in explaining the normativity of law, and indeed
Kelsen's explanation of that normativity, is closely connected with his critique
of natural law theories. He conceived his own theory as an alternative, the only
possible alternative to natural law. Kelsen even refers to the basic norm as a
natural law.15 This is not the place to examine in detail Kelsen's critique of
natural law theories, but a few remarks on some of the key ideas are essential to
the understanding of his theory of the basic norm.
According to Kelsen's account, natural law theories claim that there is a
14
It should be noted that the basic norm in such cases is said to authorize several constitutional laws created by several norm-creating acts. It is not clear in what sense a basic
norm doing this is itself one norm rather than a conjunction of several norms.
15
"If one wishes to regard it (i.e., the basic norm—J.R.) as an element of a natural law
doctrine . . . very little objection can be raised. . . . What is involved is simply the minimum
. . . of natural law without which a cognition of law is impossible." (GT 437)
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set of norms, discoverable by reason, which have absolute and objective validity.
They are completely and objectively just and good. Positive law, insofar as it is
valid, derives its validity from natural law. It is valid to the extent that the
natural law pronounces it just and good. Statutes, court decisions, etc., which
are contrary to natural law are not valid and hence not laws at all. Kelsen
correctly points out that according to natural law theories there is no specific
notion of legal validity. The only concept of validity is validity according to
natural law, i.e., moral validity. Natural lawyers can only judge a law as morally
valid, that is, just or morally invalid, i.e., wrong. They cannot say of a law that
it is legally valid but morally wrong. If it is wrong and unjust, it is also invalid
in the only sense of validity they recognize.16
Kelsen has four major reasons for rejecting all natural law theories. They
are burdened with objectionable metaphysics, they are conceptually confused,
they thrive on moral illusion, and they are unscientific.
1) Natural law theories presuppose the dualistic metaphysics which has
bedeviled the Western world since Plato.17 They presuppose an ideal reality of
completely just and good laws enjoying some form of objective existence independent of human acts or will which is contrasted with the imperfect social
reality of man-made statutes, regulations, and decisions. The latter are imperfect and less real than the former, and whatever reality they have is due to the
ideal reality. Only by imitating the ideal laws do human laws acquire validity.
Kelsen is very much opposed to this kind of metaphysics and rejects it in favor
of the antimetaphysical flavor of Kant's critical philosophy. Rejecting this
metaphysical dualism deprives natural law theories of their metaphysical foundation.
2) Natural law theories are conceptually confused. They are of two
varieties, one secular, and the other religious. The secular theories regard natural
laws as rationally binding and self-evident in themselves. The religious theories
regard them as the commands of God revealed to man through rational speculation about nature. 18 Both varieties commit the naturalistic fallacy of deriving
an is from an ought. Whatever is natural can only be a fact, and God's commands are also facts, even if divine facts, and from facts no norm is entailed.
To avoid the naturalistic fallacy both types of natural law theories must be
assumed to postulate a basic norm investing the facts with normative character.19
The secular basic norm is that nature be obeyed, the religious basic norm
dictates that God be obeyed.20 The basic norms must be considered self-evident.
They cannot be derived from any other norm, yet they are said to be objectively
valid and binding. In this way Kelsen attempts to rectify the confusions committed by the proponents of the natural law.
16
For example, WJ 144, 257ff., 295.
Cf. GT 419-433; WJ 198ff. Kelsen is not rejecting the possibility of regarding laws as
abstract entities provided they are given adequate interpretation relating them to human
behavior. Such a doctrine does not have the metaphysical implications of Platonism.
18
For the explanation of the two types of natural law theories, see, e.g., WJ 285ff.
19
WJ 141.
20
WJ 258, 26Of.
17
JOSEPH RAZ
101
3) "The doctrine is a typical illusion, due to an objectivation of subjective interests." (WJ 228) On Kelsen's analysis the natural law's claim to
objective validity rests on the assumption that its basic norms are self-evident.
Kelsen rejects all such claims as illusions. He is a moral relativist.21 No moral
position can be objectively proved and defended. There are no intuitively true
moral beliefs.22 Moral opinions are matters of personal preferences. By claiming objective validity, natural lawyers breed illusions and use them for various
ideological purposes. Most commonly the natural law illusion has been used by
conservative optimists to justify existing legal and political institutions. Occasionally the same illusion has been turned into a tool for promoting reform or
revolution.23
Kelsen's relativism does not preclude the possibility or necessity of assessing
the law by moral standards. He simply insists that every evaluation is valid only
relative to the particular moral norm used which in itself has no objective
validity. Consequently moral criticism or justification of the law is a matter
of personal or political judgment. It is not an objective scientific matter and
does not concern the science of law.24
4) By condemning natural law theories as unscientific Kelsen means that
they cannot be objectively confirmed. Therefore, Kelsen's desire to construct a
scientific theory of law leads him to renounce the morality of the law as a subject of the theory. "The problem of law as a scientific problem is the problem
of social technique, not a problem of morals." (GT 5) Legal theory is and
should be concerned with a special type of social technique for controlling human
behavior. Natural law theories, by distinguishing between just statutes which
are law, and unjust ones which are not law, obscure the issue. For they thereby
exclude some normative systems from being classified as legal, even though they
are instances of the use of the same social technique.
IV
To perform its task legal theory must be value free. Consequently its
explanation of the normativity of law must be independent of the moral value
of the law. The validity of laws must be understood as legal, not moral validity.
The basic norm is the reason of the validity of the law in the legal sense of
validity. How is the notion of legal validity and normativity to be explained?
Kelsen resorts to the conceptual framework of Kantian critical philosophy. Kant
himself adopted a version of natural law theory only because he did not remain
true to his own premises.25 His philosophy, however, provides the intellectual
tools for ridding legal theory of its dependence on the notion of moral validity.
A legal concept of validity and normativity is made possible only through
the concept of the basic norm:
21
22
2
3
M
25
Cf. WJ 141, 179f., 228f, 259, 295; PTL 64.
PTL 221.
Cf. WJ 297.
Cf. WJ 295, 302; GT 4 3 6 ; PTL 68f.
GT 444f. Kelsen's interpretation of K a n t can be disputed, b u t this need not concern
us here.
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To interpret these acts of human beings as legal acts and their products as binding norms, and that means to interpret the empirical material which presents
itself as law as such, is possible only on the condition that the basic norm is
presupposed as a valid norm. The basic norm is only the necessary presupposition
of any positivistic interpretation of the legal material. (GT 116)
The basic norm is necessarily presupposed when people regard the law as normative, irrespective of its moral worth:
. . . the basic norm as represented by the science of law may be characterised as
the transcendental-logical condition of this interpretation, if it is permissible to
use by analogy a concept of Kant's epistemology. Kant asks: "How is it possible to interpret without a metaphysical hypothesis, the facts perceived by our
senses, in the laws of nature formulated by natural science?" In the same way,
the Pure Theory of Law asks: "How is it possible to interpret without recourse
to meta-legal authorities, like God or nature, the subjective meaning of certain
facts as a system of objectively valid legal norms? . . ." The epistemological
answer of the Pure Theory of Law is: "By presupposing the basic norm that
one ought to behave as the constitution prescribes. . . ." The function of this
basic norm is to be found in the objective validity of a positive legal order.
(PTL 202)
The concept of the basic norm provides legal theory with an objective and
value-free concept of legal normativity. "The presupposition of the basic norm
does not approve any value transcending positive law." (PTL 201) "It does not
perform an ethical political but only an epistemological function." (PTL 218)
Not performing a moral or political function the basic norm is objective:
To the norms of positive law there corresponds a certain social reality, but not
so to the norms of justice. . . . Juristic value judgments are judgments that can
be tested objectively by facts. Therefore they are admissible within a science of
law. (W] 227)
The basic norm, therefore, is not the product of free invention. It is not presupposed arbitrarily in the sense that there is a choice between different basic
norms when the subjective meaning of a constitution-creating act and the acts
created according to this constitution are interpreted as their objective meaning.
(PTL 201)
With the aid of the concept of a basic norm Kelsen claims he has established
a value-free legal theory using a specific legal concept of normativity:
The postulate to differentiate law and morals, jurisprudence and ethics, means
this: from the standpoint of scientific cognition of positive law, its justification
by a moral order different from the legal order, is irrelevant, because the task
of the science of law is not to approve or disapprove its subject, but to know and
describe it. . . . The postulate to separate law and morals, science of law and
ethics means that the validity of positive legal norms does not depend on their
conformity with the moral order; it means that from the standpoint of a cognition directed toward positive law a legal norm may be considered valid, even
if it is at variance with the moral order. (PTL 68)
JOSEPH RAZ
103
V
Thus far it has been established that Kelsen regards the concept of a basic
norm necessary to the understanding of law as a normative system, and that he
thinks that only by using this concept can legal theory be value free and objective
and avoid the blunders of natural law theories. Nothing has been said so far
about the nature of the normativity accruing to the law by virtue of the basic
norm. To this problem we must now turn.
Two conceptions of the normativity of law are current in the literature. I
will call them justified and social normativity. According to the one view legal
standards of behavior are norms only if and insofar as they are justified. They
may be justified by some objective and universally valid reasons. They may be
intuitively perceived as binding or they may be accepted as justified by personal
commitment. On the other view standards of behavior can be considered as
norms regardless of their merit. They are social norms insofar as they are socially
upheld as binding standards and insofar as the society involved exerts pressure
on people to whom the standards apply to conform with them. Natural law
theorists characteristically endorse the first view, positivists usually maintain the
second view. The most successful explanation of the normativity of law in terms
of the concept of social normativity is Hart's analysis in The Concept of Law,
Theorists using the concepts of justified normativity claim that a legal system
can be regarded as normative only by people considering it as just and endorsing
its norms accepting them as part of their own moral views. Theorists using the
concepts of social normativity maintain that everyone should regard legal systems
as normative regardless of his judgment about their merits.
Much of the obscurity of Kelsen's theory stems from the difficulty in deciding which concept of normativity he is using. It will be claimed that:
(1) Kelsen uses only the concept of justified normativity.
(2) According to him an individual can consider a legal system as normative
only if he endorses it as morally just and good.
(3) Legal theory considers legal systems as normative in the same sense of
"normative" but in a different sense of "consider" which does not commit
it to accepting the laws as just.
Let us consider the first statement first. Quite often Kelsen considers a concept
of social normativity only to reject it as not being really a concept of normativity
or at any rate not being appropriate for legal theory. Thus he distinguishes
between a subjective and an objective "ought," 26 claiming that legal norms are
objective norms, explained by the concept of an objective "ought." His subjective
"ought" is a variety of social normativity. Connected with this distinction is his
comparison between objective and subjective value judgments. The latter are an
explication of one type of social normativity and are judged by him to be factual
rather than normative judgments:
26
For example, PTL 7. Here as elsewhere when Kelsen examines and rejects the concept of social normativity he considers only crude explanations of it. Social normativity cannot
be explained in terms of efficacious commands.
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The value constituted by an objectively valid norm must be distinguished from
the value that consists (not in the relation to a norm, but) in the relation of an
object to a wish or will of an individual directed at this object. If the object is
in accordance or not in accordance with the wish or will, it has a positive or
negative value. . . . If the judgement describing the relation of an object to the
wish or will of an individual, is designated as a value judgement . . . then this
value judgement is not different from a judgement about reality. For it describes
only the relation between two facts, not the relation between a fact and an
objectively valid norm. . . . The value that consists in the relation of an object
. . . to the wish or will of an individual can be designated as subjective value.
(PTL 19-20)
Describing laws as commands of a sovereign is, on this theory, describing
them as subjective "ought." If one does not presuppose the basic norm, then
judgments about the lawfulness of action, understood as judgments about their
conformity to the comands of a sovereign are merely subjective value judgments.
Kelsen acknowledges that the law can be consistently interpreted in this way, but
in this case it is not regarded as normative:
The fact that the basic norm of a positive legal order may but need not be presupposed means: the relevant interhuman relationship may be, but need not be,
interpreted as "normative," that is, as obligations, authorisations, rights, etc.
constituted by objectively valid norms. It means further: they can be interpreted
without such presupposition (i.e. without the basic norm) as power relations (i.e.
relations between commanding and obeying or disobeying human beings)—in
other words, they can be interpreted sociologically, not juristically. (PTL 218)
This is a key passage. Kelsen claims in effect that the concept of social
normativity is not a concept of normativity at all. It does not allow the interpretation of law as imposing obligations, granting powers, rights, etc. It makes the
law indistinguishable from the commands of a group of gangsters terrorizing the
population of a certain area. 27 Only by using the concept of justified normativity
can one understand the true character of legal systems as normative systems.
Because Kelsen regards the concept of justified normativity as the only
concept of normativity, he considers law as an ideology. For law is normative, i.e.,
justified and good for everyone who regards it as normative:
This is the reason why it is possible to maintain that the idea of a norm, an
"ought," is merely ideological. . . . In this sense the law may be considered as
the specific ideology of a certain historically given power. (WJ 227)
One should be careful to distinguish between the two senses in which legal
norms are said by Kelsen to be objective. In the first sense they are objective for
they reflect a social reality, i.e., because they are normative in the sense of social
normativity. In the second sense they are objective for they are normative in the
sense of justified normativity; they are an ideology. The two senses are manifested in the following passage:
27
Kelsen uses this example for a different purpose in PTL 47.
JOSEPH RAZ
105
If we conceive of the law as a complex of norms and therefore as an ideology,
this ideology differs from other, especially from metaphysical, ideologies so far as
the former corresponds to certain facts of reality. . . . If the system of legal
norms is an ideology, it is an ideology that is parallel to a definite reality. (WJ
227)
In other words, it is normative in the sense of justified normativity (i.e., it is
objective "ought") but also normative in the sense of social normativity (i.e.,
corresponding to objectively ascertainable facts the meaning of which is the
subjective "ought"). This constant shift from one sense of objective to the other
has not helped scholars to understand what concept of normativity Kelsen is
using.
To anyone regarding the law as socially normative, the question "why
should the law be obeyed?" cannot be answered by pointing out that it is normative. The law is normative because of certain social facts. It should be obeyed,
if at all, for moral reasons. The normativity of the law and the obligation to
obey it are distinct notions. Not so to people who admit only the concept of
justified normativity. For them to judge the law as normative is to judge it to
be just and to admit that it ought to be obeyed. The concepts of the normativity
of the law and of the obligation to obey it are analytically tied together. Kelsen,
therefore, regards the law as valid, i.e., normative, only if one ought to obey it.
By "validity," the binding force of the law—the idea that it ought to be obeyed
by the people whose behaviour it regulates—is understood. (WJ 257)
A norm referring to the behaviour of a human being is "valid" means that it is
binding—that an individual ought to behave in the manner determined by the
norm. (PTL 193)
These statements are unavoidable for a theorist working with the concept of
justified normativity. They are misleading if the normativity of the law is explained as social normativity only.
VI
The normativity of the law is justified normativity; its reason is the basic
norm which is, therefore, a justified norm. But it is not justified in any absolute
sense. Kelsen believes in moral relativism. For him moral opinions are matters
of personal preference which cannot be rationally confirmed or refuted. Hence
he claims that the basic norm is presupposed, i.e., accepted, and the law is regarded as normative only by people who consider it to be just:
But there is no necessity to presuppose the basic norm. . . . The system of norms
that we call "legal order" is a possible but not a necessary scheme of interpretation. An anarchist will decline to speak of "lawful" and "unlawful" behaviour,
of "legal duties" and "legal rights," or "delicts." He will understand social
behaviour merely as a process whereby one forces the other to behave in conformity with his wishes or interests. . . . He will, in short, refuse to presuppose the
basic norm. {WJ 226/7)
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THE AMERICAN JOURNAL OF JURISPRUDENCE j
. . . an anarchist, for instance, who denied the validity of the hypothetical basic ;
norm of positive law . . . will view its positive regulation of human relation- j
ship . . . as mere power relations. (GT 413)
j
A communist may indeed not admit that there is an essential difference between
an organisation of gangsters and a capitalistic legal order. . . . For he does not
presuppose—as do those who interpret the coercive order as an objectively valid
normative order—the basic norm. 28
]
j
I
!
For an individual to presuppose the basic norm is to interpret the legal
system as normative, i.e., as just. For Kelsen all the values endorsed by one
individual, all his moral opinions form necessarily one normative system based
on one basic norm. One can speak of an individual's normative system, or of the
normative system from the point of view of a certain individual. Regarded from
one point of view every set of norms necessarily forms one consistent and unified
normative order. The individual may think that some of the norms to which
he subscribes conflict. But this is a psychological not a normative fact. He may
feel torn between two opposing modes of action. 29 But it makes no sense to say
that his normative system contains conflicting norms. It is of the essence of the
concept of a normative system that it guides behavior; it guides the behavior of
those persons who adopt the relevant point of view. But if conflicting norms are
assumed to be valid from one point of view, then they do not guide behavior for
they point in opposing directions at the same time. Therefore all the norms held
valid from one point of view necessarily form one consistent system:
j
j
j
j
j
j
I
j
j
]
j
\
i
|
j
i
It is logically not possible to assume that simultaneously valid norms belong to j
different, mutually independent systems. (GT 363)
i
j
If two different systems of norms are given, only one of them can be assumed to 3
be valid from the point of view of a cognition which is concerned with the j
validity of norms. (GT 407)
I
If one assumes that two systems of norms are considered as valid simultaneously
from the same point of view, one must also assume a normative relation between
them; one must assume the existence of a norm or order that regulates their
mutual relations. Otherwise insoluble contradictions between the norms of each
system are unavoidable. (WJ 284)
1
j
I
J
\
All this is incomprehensible if it is assumed that Kelsen uses the concept of \
social normativity. It gains some plausibility if it is recognized that Kelsen is
operating throughout with a concept of justified normativity. Then it is possible
to appreciate Kelsen's reasons for maintaining that (1) for an individual to
acknowledge that something is a norm is to accept it as just; (2) from an
individual's point of view all his moral beliefs form one normative system;
28
29
"Professor Stone a n d the Pure Theory of Law," ibid., p . 1144.
Cf. GT 375. I n "Derogation" published in Essays in Jurisprudence in Honor of Roscoe
Pound (New York: 1962), a n d " L a w a n d Logic" published in Philosophy and Christianity
(Amsterdam: 1965), Kelsen retracted his claim that valid norms a r e necessarily consistent.
Unfortunately h e d i d not discuss there t h e reasons that led h i m to accept this doctrine in the
first place, n o r did h e modify those parts of his theory that depend on his previous doctrine, j
such as t h e relation of law a n d morality, municipal a n d international law, etc. Consequently
his theory of the normativity of law is intelligible a n d consistent only on the assumption
t h a t valid norms are necessarily consistent.
JOSEPH RAZ
107
(3) all the norms held valid from one point of view must be consistent. For the
normative interpretation of a person's belief is not a psychological but a rational
enterprise intended to elucidate the direction in which his views guide him.
One rather surprising consequence of this analysis is that the concept of
normative systems loses much of its importance. The most important concept is
that of a point of view. It is logically true that from every point of view there
is just one normative system, and therefore just one basic norm. An individual
accepting the justice of his country's laws, but subscribing to further values not
incorporated in the law accepts not two normative systems but one. His country's
laws are part of this system, though they can be viewed as a subsystem of his
total normative system. To assert that all the norms held valid from one viewpoint constitute one system with one basic norm is, of course, to assert more than
that they do not conflict. It is to claim that they all derive their validity from
one basic norm. This is tacitly assumed rather than argued for by Kelsen.
Granting however that the basic norm can confer validity on more than one
norm renders this a rather technical matter of no great importance.30
VII
So far the notion of a point of view was considered only as applying to
particular individuals; only points of view adopted by individuals were discussed.
But there are also more complex points of view. One can ascribe a point of
view to a group of individuals, to a population, provided the population shares
the same values. It is possible to consider hypothetical points of view, e.g., to
discuss what norms are adopted by individuals who accept all and only the laws
of their country as valid, without assuming that such individuals exist. One may
call this particular example of a hypothetical point of view the point of view of
the legal man. Throughout his work Kelsen uses the concept of a point of view of
legal science. He talks about "the basic norm of a positive legal order, the
ultimate reason for its validity, seen from the point of view of a science of positive
law." (WJ 262) He also says that the science of law presupposes the basic norm,
but nevertheless is not committed to regard it as just.
There is, for Kelsen, a great difference between a personal point of view
and the scientific point of view. Norms judged as valid from a personal point of
view are those adopted as just. But legal theory is value free and norms judged to
be valid from its point of view are not thereby adopted as just. Any individual
can discuss the law sometimes from his personal viewpoint, sometimes from the
point of view of legal science. Adopting the latter "even an anarchist, if he were
a professor of law, could describe positive law as a system of valid norms, without
having to approve of this law." (PTL 218n.) At the same time the anarchist
will reject the validity of the law when considering it from his personal point of
view. What is the nature of the point of view of legal science? How can it be
value free, and at the same time regard the law as normative in the only sense
admitted by Kelsen, i.e., that of justified normativity? One tempting explanation
is that legal theory asserts that a legal system exists only if adopted, from the
30
See footnote 14 above.
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THE AMERICAN JOURNAL OF JURISPRUDENCE
personal viewpoint, by the population to which it applies, and describes the law
as seen from this point of view. Kelsen, however, rejects this interpretation:
The doctrine of the basic norm is not a doctrine of recognition as is sometimes
erroneously understood. According to the doctrine of recognition positive law
is valid only if it is recognised by the individuals subject to it, which means: if
these individuals agree that one ought to behave according to the norms of the
positive law. This recognition, it is said actually takes place, and if this cannot be
proved it is assumed, factitiously as a tacit recognition. (PTL 218n.)
The pure theory of law does not assert or assume any attitude of the population
to the law. A legal system exists if it is effective and this does not entail acceptance as morally just.
An alternative interpretation would be that legal science describes not the
population's point of view but the point of view of the hypothetical legal man,
i.e., of a person accepting from a personal viewpoint all and only the legal norms,
without assuming that such a person actually exists. Such an interpretation is
supported by various passages like the following one:
The Pure Theory describes the positive law as an objectively valid normative
order and states that this interpretation is possible only under the condition that
a basic norm is presupposed. . . . The Pure Theory, thereby characterizes this
interpretation as possible, not necessary, and presents the objective validity of
positive law only as conditional—namely conditioned by the presupposed basic
norm. (PTL 217-218)
This interpretation comes very near the core of Kelsen's doctrine but it is
not free from difficulties. On this interpretation the Pure Theory itself does not
adopt any point of view; it does not presuppose any basic norm. It merely
describes the point of view of the legal man and the basic norm he adopts. Is
Kelsen mistaken when regarding legal science as having a point of view and
presupposing a basic norm? Does he use these terms in a completely different
sense when applied to legal science? Kelsen himself is unsure of his position on
this crucial point for occasionally he can be seen to waver.31 The difficulty results
from the fact that Kelsen does not distinguish between the science of law dealt
with by jurists talking about the law, and the activities of lawyers and judges
using the law. He considers both under the one title of juristic cognition. He
wants to claim that:
By offering this theory of the basic norm, the Pure Theory of Law does not
inaugurate a new method of legal cognition. It merely makes conscious what
most legal scientists do, at least unconsciously, when they interpret the mentioned ;
facts not as causally determined, but instead interpret their subjective meaning
as objectively valid norms. . . . The Theory of the basic norm is merely the
result of analysis of the procedure which a positivistic science of law has always
applied. (PTL 204-5)
31
Compare his treatment of the anarchist in PTL 278n. with his discussion of the
same problem in previous and subsequent publications. See also his explicit discussion of the
question whether the Pure Theory presupposes the basic norm PTL 204n.
JOSEPH RAZ
109
Kelsen, however, makes a similar claim not only about legal scientists, but also
about legal practitioners. The following passage applies to lawyers as well as
law professors:
That the basic norm really exists in the juristic consciousness is the result of
simple analysis of actual juristic statements. The basic norm is the answer to
the question: how—and that means under what condition—are all these juristic
statements concerning legal norms, legal duties, legal rights, and so on, possible.
(GI 116-7)
It can perhaps be claimed that legal scientists do not adopt a point of view;
they do not regard the law as valid but simply describe what is considered valid
from the point of view of some other person, i.e., the legal man. But legal
practitioners do not describe what somebody else regards as valid but themselves
consider the law as valid, refer to it as valid, and apply it to particular cases.
They cannot be said merely to describe a point of view; they actually adopt one.
Yet when acting professionally they need not express their personal point of view.
An anarchist can be not only a law teacher, but also a lawyer. As a lawyer he
adopts and expresses a professional point of view, the point of view of legal
science, as Kelsen calls it, which does not commit him, and is understood not to
commit him to the view that the law is just.
For Kelsen the legal scientist, as well as the legal practitioner, not only
describes a point of view, but actually adopts one. Legal science regards the
laws as valid and hence presupposes the basic norm. The point of view of
legal science is that of the legal man. It is not merely described but actually
adopted, and it is adopted in a special sense.
If a man were actually to adopt the point of view of the legal man he would
adopt the law as his personal morality, and as exhausting all the norms he accepts
as just. Legal science does not accept the point of view of the legal man in this
sense. Legal science is not committed to regard the law as just. It adopts this
point of view in a special sense of "adopt." It is professional and uncommitted
adoption. Legal science presupposes the basic norm not as individuals do—i.e.,
by accepting it as just but in this special professional and uncommitted sense.
VIII
The analysis of Kelsen's theory of normativity and of the basic norm
clarifies some of Kelsen's fundamental theses. It explains his insistence that the
basic norm presupposed by legal science authorizes the first constitution and does
not refer to any nonlegal authority like God or nature. Individuals from their
personal point of view are indeed unlikely to adopt this norm as their basic
norm. They are likely to appeal to God or to nature or some other moral norm
as their basic norm. But this is irrelevant to legal science which has a special
point of view, that of the legal man, which it adopts in the special professional
sense of adopting. Legal science, therefore, presupposes, in the special sense, this
particular basic norm, for it is concerned as a science only with positive law.
On the present analysis Kelsen's position on the relation of law and morality
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THE AMERICAN JOURNAL OF JURISPRUDENCE
is seen as entailed by the rest of his theory: "When positive law and morality
are asserted to be two distinct mutually independent systems of norms, this means
only that the jurist, in determining what is legal, does not take into consideration
morality, and the moralist, in determining what is moral, pays no heed to the
prescriptions of positive law. Positive law and morality can be regarded as two
distinct and mutually independent systems of norms, because and to the extent
that they are not conceived to be simultaneously valid from the same point of
view." (WJ 284) 32 Kelsen is discussing here the professional points of view of
the legal and moral scholar. He is not denying that a legal order can incorporate
moral rules or that morality can incorporate the law and regard it as morally
valid. Nor is he denying that an individual from his personal viewpoint can
regard both legal and nonlegal norms as valid. To the individual they will all
form part of his personal normative system, based on his personal point of view.
From the point of view of legal science, however, only the law is valid, just as
from the point of view of ethical theories only moral norms are valid.
Kelsen's insistence that from a single point of view there can be just one
normative system and just one basic norm explains why his theory of normativity
in itself entails that there is just one basic norm to every legal system. Insofar
as basic norms are necessary only to enable us to consider the law as normative,
there is nothing to prevent one from postulating several basic norms relating to
one system. One basic norm can make the criminal law normative, another will
relate to the law of property, etc. However, on Kelsen's theory this will mean
that there is no one point of view from which the legal system is considered but
several, each corresponding to every one of the basic norms.
Furthermore, since there is one general science of law, it follows, on the
Kelsenian premise of the unity of a point of view, that all the laws form but one
legal system. The ultimate reason for Kelsen's theory of the unity of national and
international law is his theory of normativity. Since all the norms held valid from
one point of view form one normative system, it follows without further argument that since both national and international law are considered valid from the
point of view of one legal science, they are parts of one system. All that remains
to do is to explain how they should be thus understood. "The unity of national
and international law is an epistemological postulate. A jurist who accepts both
as sets of valid norms must try to comprehend them as parts of one harmonious
system." (GT 373) "Once it is conceded that national and international law are
both positive laws, it is obvious that both must be valid simultaneously from the
same juristic point of view. For this reason, they must belong to the same
system." (WJ 284) "If both systems are considered to be simultaneously valid
orders of binding norms, it is inevitable to comprehend both as one system."
(PTL 332 emphasis added)
IX
This analysis of Kelsen's doctrine of the basic norm in its function in
establishing the normativity of law is based on the claim that though Kelsen
32
Compare also GT 374, 490.
JOSEPH RAZ
111
rejects natural law theories, he consistently uses the natural law concept of
normativity, i.e., the concept of justified normativity. He is able to maintain
that the science of law is value free by claiming for it a special point of view, that
of the legal man, and contending that legal science adopts this point of view;
that it presupposes its basic norm in a special, professional, and uncommitted
sense of presupposing. There is, after all, no legal sense of normativity, but there
is a specifically legal way in which normativity can be considered.
This is the core of Kelsen's theory. To it he adds the further claim that all
the norms held valid from one point of view must be considered as one consistent system. This further thesis can and should be criticized and rejected. It
leads to a distorted view of the relations between the various values subscribed
to by an individual. It also leads to a distortion of the common concept of a
legal system. This is not the place to examine the inadequacies of Kelsen's view
of personal morality. Kelsen's failure to account for the concept of a legal system
is treated elsewhere.33 It is, however, important to remember that it is possible
to reject Kelsen's identification of the concepts of a normative system and a
normative point of view while retaining the other basic tenets of Kelsen's theory
of normativity and the basic norm.
It seems to me that Kelsen's theory is the best existing theory of positive
law based on the concept of justified normativity. There is, however, a different
concept of normativity, that of social normativity. An explanation of the law
based on this concept will have no use for the concept of the basic norm. The
basic norm is needed to bridge the gap between facts and norms, between the
"is" and the "ought." But this gap exists only if norms are understood as justified
norms. Once they are understood as social norms then the gap disappears.
Legal norms themselves become facts, and their explanation can be carried out
without recourse to the basic norm. Kelsen himself, as we have seen, admits as
much.34 The fact that the basic norm is not consciously presupposed by legal
scholars and practitioners becomes, therefore, a considerable argument in favor
of explaining the law in terms of social normativity rather than Kelsen's explanation in terms of justified normativity. The necessity to ascribe to legal
scholars and practitioners a special point of view—that of the legal man—and to
regard them as presupposing the basic norm in a special professional way complicates Kelsen's theory still more. An explanation in terms of social normativity is
free of these complexities and should be preferred as being simpler. All the
more so as Kelsen does never explain what is the special sense in which lawyers
and jurists presuppose the basic norm. This omission may lead one to suspect
that they regard the law as socially normative, as a fact about the society in
which they live. Does not Kelsen himself say that "the principle of effectiveness
is the general basic norm that juristic thinking assumes whenever it acknowledges
a set of norms as the valid norms of a particular state"? (WJ 224) Would it be
wrong to regard this statement as an unconscious admission that juristic thinking
interprets the law in terms of social normativity?
ss
34
Cf. Section II above and Hart: "Kelsen's Doctrine of the Unity of Law," ibid.
Cf. Section III above.